Fighting for what is needed

March 31, 2008Duke Law News

March 31, 2008 — The words of “Miss Betty,” a 65-year-old inmate at the Julia Tutwiler Prison for Women in Wetumpka, Ala., framed legal activist Lisa Kung’s recent remarks at Duke Law about reform in the criminal justice system: it’s not about what’s possible, it’s about what’s needed.

Kung serves as the director of the Southern Center for Human Rights in Atlanta, an organization Duke Law students regularly assist on their annual Spring Break Southern Justice Mission Trips. Describing the center’s representation of more than 1,000 inmates in Tutwiler Prison, Kung highlighted the unconstitutional conditions of the facility. Alabama's only prison for women, Tutwiler had long exceeded its maximum capacity of 346 inmates. Expanding into makeshift barracks created such overcrowded and dangerous living conditions that U.S. District Judge Myron Thompson called the facility a “ticking time bomb.”

After negotiating what they thought was a reasonable settlement, given the limitations of prison reform, Kung and her team traveled to Tutwiler to convince their 1,000 clients to sign it. “We worked our way through the prison and we met with every dorm,” Kung said. “We explained to these women that everything we could get — everything that was possible under the law — was in this settlement agreement.”

During her presentation to the women of Dorm No. 9, the most congested and volatile of the barracks, Kung said she remembered “Miss Betty” rocking her wheelchair forward to interrupt with the following words: “Miss Lisa, we trust you. We believe when you tell us that everything that is possible is in this settlement. And if you want us to sign it, we’ll sign it. But we need to know that you understand that it’s not about what’s possible, we need to know that you understand what’s needed.”

“Justice Brennan, in McCleskey, wrote a dissent where he very accurately described the majority’s opinion as ‘a fear of too much justice,’” Kung said. “It was a moment where they had a clear understanding that what was possible for them to do was very different from what needed to change. The racial disparities in the criminal justice system were so fundamental to the functioning of that system, that doing what was needed to make things right would paralyze the system.”

At the Southern Center for Human Rights, “our explicit mission is to challenge the misuse of the criminal justice system to the extent that it targets and controls poor people and people of color,” Kung said. The center represents prisoners’ challenges to unconstitutional conditions and practices in prisons and jails, challenges systemic failures in the legal representation of poor people in the criminal courts, and represents people facing the death penalty who otherwise would have no representation.

“If you care about race in this country, you really must work in criminal justice and you really must work in the South,” Kung said, encouraging students to join the center for Spring Break or a summer internship. “If you don’t do it at the Southern Center, do it somewhere. It really will change your life.”

At a July 21 Duke Law event in Washington, D.C., Associate Justice Ruth Bader Ginsburg recapped the U.S. Supreme Court’s 2016-17 term and discussed its recent consensus among the justices, its rulings on the scope of the Trump administration’s “travel ban” executive order, and her legal legacy during an interview with Professor Neil Siegel.